Maine Supreme Judicial Court rules appeal to stop permitted Clifton wind farm filed too late

Posted Jan. 01, 2015, at 5:39 p.m.
Last modified Jan. 02, 2015, at 11:06 a.m.

CLIFTON, Maine — The state’s highest court decided Wednesday that an appeal by two Rebel Hill Road farmers to stop a permitted $25 million wind farm on nearby Pisgah Mountain was filed too late.

The justices of the Maine Supreme Judicial Court ruled that local perennial farmers Peter and Julie Beckford filed their lawsuit against Bangor developer Paul Fuller and his local partners five days too late.

“Because the Beckfords did not file their appeal with the Superior Court within the time required [by law], the court did not have jurisdiction over the matter,” wrote Justice Jeffrey Hjelm in the court’s decision. “Consequently, we vacate the judgment.”

“The news was devastating to us,” Peter Beckford said Thursday night. “The court negated the last three years, our win and denied us our day in court. The system really isn’t set up for the regular person.”

“They can’t stop us now,” Fuller said after the decision was made. “We won.”

Fuller first approached the town in 2010, when he and his wife, Sandy, asked to put up a meteorological tower on Pisgah Mountain to see if there was enough wind to harvest.

The Clifton Planning Board unanimously approved a five-turbine wind farm in October 2011, and shortly thereafter, the Beckfords asked the town’s board of appeals to review the planning board’s decision to see if it followed the letter of the law. The board of appeals voted unanimously on Jan. 25, 2012, to deny the Beckfords’ appeal, and the Beckfords filed their Superior Court lawsuit against the town on March 15, 2012.

“The Beckfords filed their appeal 45 days after the [board of appeals] issued its written findings and decision on Jan. 30, but 50 days after the [board of appeals] voted to deny the appeal,” Hjelm said.

Superior Court Justice Andrew Horton issued a finding on Dec. 10, 2013, in the Beckfords’ favor, saying the planning board did not follow the Clifton land use code when it approved the wind farm permit. His decision nullified the Pisgah permit.

Wednesday’s decision “means that Justice Horton never had jurisdiction to review the matter, so his decision has become a legal nullity,” said Fuller’s attorney, Bill Devoe of Eaton Peabody in Bangor.

The wind farm developers filed an appeal to the state’s highest court on Dec. 31, 2013, that listed six points, including one that states the original appeal by the Beckfords was filed outside the appeal period.

“The language of [the law] is clear and unambiguous: the time period for filing an appeal runs from ‘the vote,’” Hjelm stated.

Leigh I. Saufley, chief justice of the state’s high court, wrote another concurring opinion, saying that the case is a perfect example of “difficulties caused by imprecise or varying language that triggers appellate time frames,” especially since deadlines are different for local and state appeals.

“It would greatly benefit the people of the state of Maine if the Legislature undertook a thorough review of the events that trigger the running of the time for appellate review for both state and municipal appeals to establish a single, consistent, and understandable triggering event and time frame for seeking appellate review,” Saufley wrote.

“The justices couldn’t agree about [the appeal deadline], and they’re brilliant legal minds,” Peter Beckford said. “It’s just mind boggling.”

Beckford said his next step “will be a beer at Orono Brewing Company. You can quote me on that.”

After that, “We’ll explore our options,” he said.

“Paul Fuller and his colleagues are grateful to the court for the attention to detail that went into this case,” Devoe said. “They look forward to moving ahead with this project in 2015.”

Fuller said work is already underway.

“In 2015, we will put in the foundations for the towers, add electrical and other infrastructure,” the wind farm developer said. “We’ll put the substation in and the road to the towers.”

The wind farm partners have an agreement with ISO-New England, the six-state power grid operator, to connect to nearby Line 66.

The towers, which are on backorder, should be installed during the first quarter of 2016 for the 9-megawatt wind farm, Fuller said.

In the last five years, Clifton residents have voted seven times on issues concerning wind energy.

“I’m very grateful and thankful to all the people in Clifton who have supported us and for those who listened to the good science and engineering,” Fuller said.

 

CORRECTION:

An earlier version of this story incorrectly said Saufley wrote a dissenting opinion.

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